USG Statement on Int’l Criminal Court Probe into Alleged U.S. War Crimes is Missing Some Things

As states gathered earlier this month to kick off the 16th Session of the Assembly of States Parties to the International Criminal Court, ICC watchers wondered what to expect from the United States at this difficult moment in its relationship with the court.

Indeed, it was hardly a foregone conclusion that the United States would show up at all. Not an ICC state party, the United States had during the Obama Administration developed the practice of attending Assembly meetings as an observer, but that was during a distinctly warmer period in U.S.-ICC relations. The chillier turn of late is attributable not just to a transition to an Administration with considerably less ICC-friendly instincts than its predecessor, but to the ICC Prosecutor’s recent announcement that she would seek permission to investigate allegations of CIA and DOD detainee abuse as part of her broader work on Afghanistan.

Of course, even an ill-disposed United States would have good reason to send a delegation to New York to gather scuttlebutt and work behind the scenes to advance its interests, but that reasoning has not always carried the day. Earlier this month, immigration hawks in the Administration prevailed over Nikki Haley to push the United States out of negotiations over a U.N. migration compact, self-defeatingly leaving other governments to negotiate it without U.S. input. Against that backdrop, it was at least modestly encouraging to see that the logic of engagement carried the day, although it was only engagement in the narrowest sense, as the U.S. government seemed almost exclusively focused on delivering a message that pushed back against the Prosecutor for her focus on U.S. personnel. That message was delivered in the form of a brief and sometimes Delphic formal statement that reflected some continuity with the past, some change, and a few conspicuous absences.

For continuity, look first to the two opening sentences of the statement, in which the United States expresses its strong support for justice and accountability and its appreciation for the ICC’s efforts to pursue these objectives. While these sentiments would have been unremarkable in an Obama-era statement, it is interesting that the United States would express any appreciation at all for the court in today’s political environment—one in which ICC arch-critic John Bolton publicly advised the Administration that any communication with the Prosecutor should consist of the message “You are dead to us.” That a flicker of collegiality remains says something about the extent to which U.S. foreign policy has adapted to the existence of the court and even—until recently—embraced it as a partner. That said, these sentences, which are echoed at the end of the statement, are about it for positive messaging.

The statement then turns to attacking the legitimacy of the Prosecutor’s attention to U.S. personnel. Notably, while there has been speculation that the United States might soon put forward an argument that the ICC cannot as a matter of international law assert jurisdiction over the nationals of non-party states (an issue that has been the source of protracted disagreement between State and Defense department lawyers) the statement does not quite offer one. Instead, it dangles references to a range of legal principles that might be read as either irrelevant to the core question or the building blocks to a still unfinished overarching theory, depending on one’s perspective.

The U.S. argument proceeds in four main parts. The first is a simple rejection of the court’s jurisdiction over the nationals of any non-party state absent the state’s consent or a U.N. Security Council referral. Framed in general terms, this statement of a “continuing position” maintains a seemingly purposeful ambiguity about whether it sounds in law or policy or both. This has been the United States’ unwavering historical posture with respect to the ICC, and the formulation offered here is little different from what the Obama Administration might have said if pressed on the subject.

Next, the statement invokes the international law principle that treaties can bind only their parties and follows it with a statement that the Rome Statute cannot be interpreted as “disposing” of U.S. rights without U.S. consent. It is unclear whether the U.S. means to offer the beginnings of a serious legal argument here, or more to give that appearance while it continues to work internally to consider whether one is actually available. The latter seems more likely. For however true it may be that treaties do not bind non-parties or dispose of their rights, that is not what is at issue. After all, the United States does not, in general, have the “right” for its citizens to commit alleged crimes on the territory of another state without facing justice at the hands of that state. The primary right in question is Afghanistan’s – i.e., its right to bring those who committed alleged crimes on its territory to justice – and the relevant question in this circumstance is whether Afghanistan could and did properly delegate this right to the ICC. Perhaps there is an argument that it couldn’t or didn’t, but the United States doesn’t make it here, suggesting that it is not prepared to engage the core issues that it would almost certainly need to address in launching a credible theory.

Third, the statement politely but ominously signals that should there be a showdown between the United States and the court–e.g., should the court years from now issue a warrant for the arrest of a U.S. person– the United States will expect states parties to “respect” its decision not to join the ICC and place its citizens under the court’s jurisdiction. However one feels about it, this may over time prove the strongest arrow in the U.S. quiver. After all, it is tough to figure how states parties would act if torn between their obligations to the court on the one hand and an agitated United States on the other, and it’s anyone’s call whether the court will view its institutional interests as served by forcing the question. If it decides the answer is “no,” there are at least some mechanisms the Prosecutor could use to focus attention away from this thicket (most prominently, as Alex Whiting has suggested, case selection).

Finally, the statement turns to the matter of “complementarity”—i.e., whether U.S. efforts to hold its personnel accountable were sufficiently genuine for the ICC to forego investigation in accordance with its statute and protocols. Here, the United States begins by expressing concern that the court has made a complementarity determination without U.S. consent, presumably referring to the analysis the prosecutor performed as part of her preliminary examination into the Afghanistan situation. Much about this portion of the statement is confusing (Kevin Jon Heller works through some of it here), but fundamentally it falters for the same reasons that the United States’ arguments about nonconsensual jurisdiction falter. It’s not that the legal arguments are wrong so much as there are no legal arguments. Moreover, one wonders how far the United States is willing to take the principle that outside organizations should not sit in any kind of legal judgment of non-consenting States. Would that make it improper for the European Union to make the findings that undergird human rights sanctions on a non-EU state? Or for the Venice Commission to write opinions about human rights in Venezuela and Egypt?

There are more than the usual number of head scratchers like this in the U.S. statement this year, but those particulars probably matter less than the overall takeaway, which is that the United States does not at this point seem prepared to share any dramatic changes—either as a legal or tactical matter—in how it is approaching the prospective Afghanistan investigation.

Finally, it is worth reflecting briefly on what the U.S. statement does not address. There is not a word, for example, on the possible activation of the crime of aggression—something that the last Administration opposed not because of concern the U.S. would be implicated (it would be protected by express statutory provisions) but because, among other things, of the chilling effect it might have on building coalitions to address massive humanitarian emergencies like Kosovo and Rwanda without Security Council authorization. Given the specter of ICC prosecution, the United States wondered, would European partners sit on the sidelines rather than act in future Kosovos? The U.S. delegation’s recent silence on this subject might reflect an assessment that politicking around the crime of aggression is best left to a cross-regional group of states parties that are now actively seeking to address similar concerns. It might also reflect the reality that the United States’ priorities have shifted. In another era, however, the United States would surely have found a way to offer a word or two to commend the countries leading this important diplomatic effort, and to work behind the scenes to lend them expertise and support.

Perhaps more significant, though, was the absence of what had become a traditional listing of the many areas where the Court and the United States have worked together to end impunity for the worst crimes known to humanity. Those areas grew considerably over time and, in prior years, might have been the bulk of the United States’ annual statement. This year, there is nothing. That is hardly unexpected given the state of the relationship and, given the Afghanistan investigation, might have been the case under any Administration.

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About the Author(s)

U.S. Program Director for International Crisis Group, Served in the Obama Administration as the National Security Council's Senior Director for Multilateral Affairs and Human Rights
Follow him on Twitter (@StephenPomper).